Supreme Court Holds Residual Clause Violates Due Process

It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.

It is rare for the US Supreme Court to declare, almost unanimously, that it doesn’t know what something means. But that just happened in Johnson v. United States, a case about the proper interpretation of the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e) (the “ACCA”).

We’ll start with the facts. The defendant in Johnson is a felon with a long criminal record. In 2010, the FBI began to monitor him because of his involvement in a white supremacist organization that was suspected of planning a terrorist attack. During the investigation, the defendant told undercover agents that he planned to use explosives to attack the Mexican consulate in Minnesota, progressive bookstores, and liberals. He showed the agents an assault rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition. The defendant was arrested and pleaded guilty to violating 18 U.S.C. §922(g).

THE ARMED CAREER CRIMINAL ACT HAS A 15 YEAR MANDATORY MINIMUM SENTENCE

Section 922(g) forbids convicted felons from possessing firearms (most people are familiar with the crime and commonly refer to it as “being a felon in possession of a firearm”). The law generally punishes violators with up to 10 years’ imprisonment. If, however, a defendant has three or more prior convictions for a “serious drug offense” or a “violent felony,” the ACCA increases the prison term to a minimum sentence of 15 years and a maximum sentence of life.

So, what is a “violent felony” under the ACCA? The Act defines a violent felony as:

any crime punishable by imprisonment for a term exceeding one year . . . that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.“

The highlighted language above is referred to as the ACCA’s “residual clause.” The question in Johnson was whether the defendant’s prior conviction for the unlawful possession of a short-barreled shotgun (under Minnesota law) was a violent felony under the residual clause. The Court held that it was not because the residual clause is unconstitutionally vague and therefore violates the Constitution’s guarantee of due process.

Let’s dig a little deeper. The Court begins its legal analysis with the Fifth Amendment:

The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. . . . The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” . . . These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.

Prior to Johnson, the Court adopted a framework called the “categorical approach” to decide whether an ACCA predicate offense is “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injuty to another[,]” as those terms and that language is used in the ACCA text. This framework required a court to assess whether a crime is a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Johnson at 4. It further required “a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Id.

The Court cited two features of the residual clause that make it unconstitutionally vague. First, the clause “leaves grave uncertainty about how to estimate the risk posed by a crime” in the judicially imagined “ordinary case.” For example, “does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence?” The Court concluded that “[t]he residual clause offers no reliable way to choose between . . . competing accounts of what” an “ordinary case” involves. Id. at 6.

Second, the clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” The Court offered the following as an example:

Does the ordinary burgler invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarassing personal information? By combining indeterminancy about how to measure the risk posed by a crime with indeterminancy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”

Throughout the opinion, the Court explains its (and lower courts’) failure to develop a consistent, reliable, and predictable framework for application of the residual clause to different felonies. This failure mandated striking the clause as unconstitutionally vague. Importantly, application of the ACCA to the four specifically enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives) remains in tact.